The impact of political affiliation on jurors' verdicts
Litigation Psychology Podcast #38
In recent years, American politics have been highly polarized. CSI's Litigation Consultants recently conducted research on the extent to which jurors’ political affiliation “matters,” and illustrates why jurors’ political orientation must be considered within the context of other social and psychological factors to maximize the effectiveness of jury selection strategy.
Steve Wood, Ph.D.
Dr. Steve M. Wood is a Litigation Consultant at Courtroom Sciences, Inc. Dr. Wood uses his social psychological expertise to help clients understand the juror decision-making process and maximize the likelihood of favorable case outcomes. He also assists clients with a myriad of case-related activities, including pre-trial research, witness effectiveness training, case theme development, supplemental juror questionnaires, and jury selection. His work has been published in various peer- reviewed academic journals, as well as several scholarly magazines and he has spoken on various legal psychology topics across the country.
Lorie Sicafuse, Ph.D.
Dr. Sicafuse is a Litigation Consultant at Courtroom Sciences, Inc. Her grant-funded doctoral research examined jurors’ perceptions of witnesses, susceptibility to bias, and attributions of blame. Dr. Sicafuse has authored over twenty peer-reviewed publications appearing in academic journals and edited volumes. At CSI, Dr. Sicafuse applies her expertise in attitude change, information processing, and research methods to maximize the likelihood of favorable trial outcomes. Her knowledge of psychological research informs the wide range of services she provides, which include witness training, pre-trial research, jury selection, venue attitude research, and post-trial interviews.
Dr. Wood: Welcome to the Courtroom Sciences Inc. Podcast. My name is Steve Wood. I'm a Litigation Consultant here at CSI.
In today's topic, we're looking at the relationship between political affiliation and jury verdicts. Thought this would be an interesting topic at this time due to the current political landscape and the fact that political orientation and affiliation has become a widespread topic of interest, not only just with litigation consultants but with attorneys as well.
Joining me for this discussion today is Dr. Lorie Sicafuse, who is also a Litigation Consultant here at Courtroom Sciences. Thanks, Lorie, for taking the time out to come and talk to me about this topic.
Dr. Sicafuse: Thank you for having me.
Dr. Wood: You and I both know that the common belief that attorneys and us and people have is that Republicans are bad plaintiff jurors and Democrats are bad defendant jurors. But what has the prior research really shown regarding this topic?
Dr. Sicafuse: Right. Actually, there is no prior research regarding this topic, which is very interesting, given the interest in it. Most of the jury decision-making research is conducted by academics, and it's conducted in the criminal realm, which you know is very different from the civil realm. So there's actually no published research out there that examines the relationship between civil jurors' political affiliation and their verdict preferences.
Dr. Wood: But you have done some research because you and I had been talking. That's why I wanted to make sure to bring you on because I've been interested in this and wanted to hear what you had found because you just recently did some research on this. Didn't you?
Dr. Sicafuse: Yeah, we did. A colleague of mine at Courtroom Sciences, another litigation consultant, Dr. Melissa Loberg and I decided, "Well, since there is no published research out there, let's take a look at it ourselves." We collect data from all the mock trials and pretrial research projects we do. And we also collect data from actual jurors in post-trial interviews. And we took a sample of almost 800 jurors with data collected in the last year or two because we really wanted to look at the more current relationships, given the new socio-cultural changes and all the divisiveness in that. So with these 800 jurors, we had information on their political affiliation and, of course, their verdict preferences. And what we found did support the widespread belief that yes, if you're a defense attorney, you may want to look out for those jurors who identify as Liberal. And if you're a plaintiff's attorney, you might want to look out for Republicans.
Dr. Sicafuse: But it's really not that simple. So yes, jurors who identify as Liberal or Democrats are more likely to side with plaintiffs, and jurors that identify as Republicans or Conservatives are more likely to side with the defense, but these effects are small. So for example, in our sample, we still had about 44% of Democrats who voted for the defendant, 38% of Conservatives who voted for the plaintiff. So it's obviously not a rule that you want to rely on. Interestingly, we also found that jurors identifying as Independent statistically were more likely to favor the defendant, which is interesting and was a little bit unexpected.
Dr. Wood: Yeah. And I wanted to stop you there and touch on that because, as we found, when we do our mock trials and focus groups in that, that we list out what people's political affiliations are. And it seems like nowadays we're seeing a lot more Independents. A lot of people are not Republican, not Democrats. It's much more Independent than we've seen before. And I know that's come as a surprise to attorneys as well when they're looking at it, this rise of Independents. But what do you make of that finding, that Independent jurors are more likely to side with the defense?
Dr. Sicafuse: And again, it's not a black and white thing. It's certainly not a 100% predictor. It's a small effect, but it is a statistically significant one. I think that jurors who identify as Independent are maybe less likely ... They have less of a need to identify with a particular group, with a particular category. They are okay with waiting for more information before they make a decision. They're not quick decision makers, and they can have beliefs that are ideologically inconsistent. They're okay with having some conservative beliefs and some liberal beliefs. And those kind of characteristics are really what you want in a defense juror.
Dr. Wood: Yeah. As we like to say when we are looking for jurors, we are always looking to find who is it that can say, especially during voir dire, is when you're asking questions, that you hear them say the hot-button issues of "Oh, I can wait until I hear both sides," or the "I need more information. I need more information." Those are going to be the people who are more apt to not all of a sudden just dig in and wait to hear more information. So they're on the fence. And then as they get more information, they tend to make a better decision.
Dr. Wood: But what I wanted to know too is, a lot of times we work on various cases across the country. And did you find any differences across case types in your results as far as the political affiliation goes?
Dr. Sicafuse: Interestingly, we did not. These effects held across a variety of case types. In our sample, we had all kinds of different cases: intellectual property cases, your regular negligence cases, med mal. We had some employment in there. And we did not see any different effects. These effects were pretty standard across the board.
Dr. Wood: Interesting. So if you had an attorney who was listening to this and they say, "Okay, great. I'll get all the information about political affiliation," what would your advice be to them as far as whether or not they should use political affiliation as this primary determinant for jury selection?
Dr. Sicafuse: I would say to use it but definitely not as a primary determinant. You never want to make jury selection decisions based on one characteristic, and really there are other juror characteristics that are just as predictive, if not more predictive, than political affiliation. So you really have to take jurors' expressed political beliefs, or what you know about their political beliefs by doing background research, within the context of the case characteristics, the individual juror characteristics, and analyze that as a package. Because I mean, if you do make that decision based on political affiliation alone, our research tells us that you have a good chance of striking out. Even though it is a predictor, it's a relatively weak one, statistically speaking.
Dr. Wood: So can you provide a basic example though of what you're talking about as far as what you would use or how you would look at this interaction between different characteristics when making jury selection decisions?
Dr. Sicafuse: Yeah, of course. You always have to think about your particular case. And the truth is that there's a certain set of beliefs and an ideology associated with those who self-identify as liberal and a certain set of beliefs and ideology associated with those who identify as conservative. And in some of your cases, depending on what the case is about and the specific issues ... For example, if you're a defense attorney, conservatives really might not be so great for you, depending on their beliefs, for example, in cases where there's really nobody else to point the finger at.
Dr. Sicafuse: So let's say, for example, you have a med mal case, and you have a plaintiff that is completely blameless. There's nobody else to point the finger at, very sympathetic, blameless plaintiff. The only thing really to talk about is, were procedures appropriate and causation. In those cases when there is nobody else to blame and nobody else can be responsible, conservatives are actually more likely to want to help the plaintiff than even liberals are. So you'll see, if you get conservatives on those juries where the plaintiff is totally blameless, nobody else can be blamed except for the defendant, there's no one else to point the finger at, conservatives can actually be pretty bad for the defense in some circumstances and be very willing to hit them with high damages awards. Also in cases, for example, with infants, infant deaths and those types of things in med mal cases, conservatives tend to be sometimes pretty risky jurors for the defense.
Dr. Wood: Interesting. Yeah, and I'm sure that probably goes back to, especially when you were talking about, when there's no one else to point the finger at, then conservatives tend to be more apt to side with the plaintiff. And I'm sure that goes back to the idea of personal responsibility. And if there's no personal responsibility on the plaintiff, then the personal responsibility has to fall onto the organization.
Dr. Sicafuse: You're absolutely right. Yep.
Dr. Wood: So I wanted to talk about too is, doing this jury research across the country and doing it in a bunch of different venues and stuff, I know that there's a common notion that the political culture of a venue gives one party an advantage over the other. But have you really found that to be true, that the political culture tends to be advantageous to one party?
Dr. Sicafuse: I mean, every once in a while, but you really have to be careful about that. I mean, take East Texas. There is a reason why 33% of all IP cases are tried over there, and it's certainly not because of the political leanings of the venue, which is strongly conservative. Really, when you rely on that, "It's great. We're going to try this case here," that can backfire. Now, I'm not saying you should never want to change the venue because, of course, some venues are more favorable than others, and sometimes it is because of the beliefs. But you have to be careful.
Dr. Sicafuse: We're seeing a lot of big plaintiff verdicts, obviously in the Rust Belt states and traditionally red jurisdictions in Ohio and West Virginia. We're seeing them in Michigan. We're seeing them in Minnesota. And we're even seeing some, actually seen quite a few, in conservative Iowa, which isn't your red Rust Belt. So we're seeing that. And on the flip side, we've had several big defense victories actually up in Cook County. You definitely have to be careful. You can't rely on the political orientation of an overall venue too much.
Dr. Wood: My guess is too, part of the reason why, as you've seen these big verdicts, as you and I both know, is really partly due to this reptile theory that's been coming out to the reptile strategies that a lot of the plaintiff attorneys are using these days to help with cases that, what may have been low dollar values prior, now are becoming high-value ones. So really, how do you see this aggressive plaintiff reptile approach play out in these traditionally conservative venues? Because you've been talking about how you've been surprised to see these large verdicts coming out of those red Rust Belt areas.
Dr. Sicafuse: Yeah, and that's a great question because we hear from several attorneys, "Well, this is a conservative venue" or "This is a rural venue, and this is full of common sense jurors. And they're not going to be susceptible to those reptile approaches, and they're not going to be susceptible to these aggressive plaintiff tactics. They're not going to be fooled by that at all." And we get unpleasant surprises when we realize that these rural conservative jurors, those in traditionally Rust Belt jurisdictions but also farmers, small town jurors, good common sense jurors, are actually susceptible to these reptile tactics just like any other juror, despite their political affiliation and the fact that they do have a strong work ethic, and they're all into common sense.
Dr. Sicafuse: But these reptile tactics, again, they're just highly effective. They provide a simple rule for jurors to evaluate the merits of the case. And also, I think in some of these rural areas, jurors have a lot of common sense, but they're also pretty naive. And they also want to believe the best in people. So I mean, they are susceptible to courtroom antics. And they are susceptible to these reptile attacks. And they do perceive all of these efforts in asking for tens and millions of dollars is pretty much honest, if that makes sense.
Dr. Wood: Yeah, absolutely. And I want to switch gears a little bit and talk to you about a topic I know that's been of interest to all of us as well as attorneys. Have you conducted any research on Trump supporters? I know there are a lot of times that people refer to the Trump Effect and how, with Trump being in the White House now, that there's just been this change in the landscape of the political field. So I just wanted to see what you found or if you've done any research on this kind of Trump Effect and Trump jurors.
Dr. Sicafuse: Yeah, that's a great question. I know that you've heard as well, attorneys are very, very interested in Trump supporters. And when we're in a jury selection, we always get that type of a question: what do you do with the Trump supporters? Who's a Trump supporter? I'm sure you've had that experience.
Dr. Wood: Oh, for sure. Yeah, absolutely. So I guess, what are your plans or how are you going to move forward with getting any information? Or do you have any plans to move forward with anything related to the Trump Effect?
Dr. Sicafuse: So we are currently collecting data from actual and mock jurors regarding Trump support specifically. We're compiling our data set now, and we're hoping to have the results of that soon. But what I can tell you, according to past research with Trump supporters, you really can't make a jury selection decision based on who's a Trump supporter and who's not. There are several different types of Trump supporters that we know from prior research. So for example, a very widely cited study from the Democracy Fund Voter Study Group, shows there are actually five types of Trump supporters out there. And some of those types have characteristics associated with pro-defense jurors, and some of those types have characteristics that are pretty strongly associated with pro-plaintiff jurors. So not all Trump supporters are created equal. You really have to dig into those beliefs and those personality characteristics to find out what you're dealing with.
Dr. Wood: Yeah. One of the most interesting things that I've found is that you would assume, from a lay perspective, that Trump supporters would all skew one way or the other. So it's interesting to find out that that's definitely not the case. So can you give me an example of the different types of the Trump supporters and knowing the differences and the significance for jury selection purposes?
Dr. Sicafuse: They're pretty much all equal sides except for a smaller group. So first, you have your Staunch Conservatives; Staunch Conservatives in terms of this research. So they comprise about 30% of Trump's supporters, and they're how you would picture a typical conservative. They like traditional conservative figures like Ted Cruz and Paul Ryan. They're super loyal to the Republican party. And those are the typical conservatives that often favor the defense. And you also have, among these Trump supporters are these Free Marketers. So those make up about 25% of the Trump supporters. And they tend to be more fiscally conservative and socially liberal, but they're into free markets. They don't particularly like Trump, but back in 2016, they voted for Trump in order to vote against Hillary Clinton. Again, this group has a set of characteristics that you would most often associate with a pro-defense orientation.
Dr. Sicafuse: But then, you have these groups like the American Preservationists, is what they're called. And they make up about 20% of Trump supporters, and these individuals are economically progressive. About half of them reported positive views of Hillary Clinton in 2012. They watch a lot of TV, and they're much more likely to smoke than our other groups, some characteristics that are associated with a pro-plaintiff orientation. And then you have another group, which is similarly sized, called the Anti-Elites. And actually about half of them report positive perceptions towards Bernie Sanders, and they're very economically progressive. I'll let you come to your own conclusions on which side those jurors might favor, but you can see there's definitely a wide variety of conflicting beliefs and characteristics among these groups.
Dr. Wood: Interesting. But I guess the question really becomes ... As we know that there's very few things, in the United States especially, that are as divisive as political affiliation. I've seen family members get in arguments with each other over certain political affiliation beliefs or views or topics or anything like that. So it's such a taboo topic to ask potential jurors as far as the way they approach their political affiliation. So how should attorneys approach this topic when they're asking jurors questions during voir dire?
Dr. Sicafuse: That's a great question. I think the best thing to do is actually to conduct background research and analysis of social media accounts. I think social media analysis and background checks are actually the most effective ways to learn about jurors. In many States, background checks will give you voter registration. But what's really important is, yes, the political orientation, but also how strongly they feel about their political beliefs and ideologies, whether or not they take any actual action. Are they part of groups? Are they part of organizations? Do they donate money? Do they advertise their political beliefs? Do they post a bunch of stuff about it on Facebook? So looking at juror social media profiles can really, really be useful. I know that sometimes jurors are smart enough to keep their social media accounts private, but that tells you something about jurors too.
Dr. Sicafuse: We hear from a lot of attorneys that will say, "Well, we don't get juror lists or we don't get names of prospective jurors until the morning of jury selection." And while it's ideal to get that list a few days before, if you can, you'd be surprised at what we can find out about perspective jurors just within an hour or two of getting that list. If you think about the wealth of information on social media, there's really no substitute for that, especially I think for defense counsel more so. It's valuable for plaintiff's counsel as well. But for defense counsel ... Pro-plaintiff jurors are just more likely to post, and they're more likely to publicly post. So that's something to think about.
Dr. Sicafuse: There are lots of proxy questions that can get at political affiliation and orientation. These proxy questions are often more predictive than just asking about political affiliation themselves if you're doing that in oral voir dire. Juror questionnaires are great. I've had many experiences where many judges have allowed a question about political orientation on the juror questionnaire. But again, there's lots of proxy questions where we can get at that without directly asking. One really great question for jurors: well, what do you think is the most important problem facing the US today, and then what should be done about it? And that will tell you way more about a juror than simply asking what their political beliefs are.
Dr. Wood: Because the thought is to get their opinion as far as how strongly or what it is that they're looking for as the biggest problem and then as far as the actions of what they think should be done. Because as jurors, some jurors are going to have more extreme views of what they think should be done, versus those other jurors. So the idea that if frivolous lawsuits are one of the biggest problems in the United States today and a juror is willing to wave a magic wand and get rid of all lawsuits, that's a lot different than a juror who says, "Well, frivolous lawsuits are a problem, but no, I wouldn't wave a magic wand and get rid of all of them because some of them have merit, versus some of them don't."
Dr. Sicafuse: Yeah, exactly. And I think it's really informative to see what the jurors' suggested solution to their problem is. Because obviously, if they offer a quick and easy solution to a very complex, widespread problem, that tells you a lot about the juror and the extent to which they'll be risky for you or beneficial to you, depending on what side you're on.
Dr. Wood: Right. Exactly. Well, I don't want to take up much more of your time. But I do want to ask: if you could provide counsel with a single take-home message that you could distill all this research down into something that's actionable for counsel, what would it be?
Dr. Sicafuse: Jury selection and analyzing these prospective jurors is rarely ever simple. So in addition to looking at political affiliation, you really have to look at a multitude of characteristics: how they interact with the case, how they're going to interact with group decision-making dynamics. So it's a lot to consider. So it's good to have somebody, like a litigation consultant, on your side, doing that analysis for you, so you can really concentrate on the legal aspects of voir dire.
Dr. Wood: Great. Well, Lorie, I appreciate you taking the time out to chat with me about this. So thanks again.
Dr. Sicafuse: Thank you so much.